NCLB Trumps IDEA, Appeals Court Rules

A federal appeals court has
turned away a lawsuit by two Illinois
school districts and four families
that said the No Child Left
Behind Act was in conflict with
requirements of the main federal
special education law.

A three-judge panel of the U.S.
Court of Appeals for the 7th Circuit,
in Chicago, ruled unanimously
on Feb. 11 that even if the
NCLB law was at odds with the Individuals
with Disabilities Education
Act, the special education law
“must give way” because NCLB is
the newer statute.

The 1,600-student Ottawa High
School District and 2,000-student
Ottawa Elementary School District
141, along with the parents
of four students in special education
in the districts’ schools, had
sued U.S. Secretary of Education
Margaret Spellings in 2005.

The suit said that the IDEA’s requirement
that each special education
student have an individualized
education program runs
contrary to the No Child Left Behind
law’s requirement that special
education students count as a
distinct subgroup whose test results
help determine whether a
school makes adequate yearly
progress, the key NCLB measure for
holding schools accountable.

A federal district judge in
Chicago had dismissed the suit
last year, ruling that the school
districts and families did not have
legal standing because they had
suffered no concrete injuries
under the NCLB law.

Standing to Sue

The 7th Circuit panel reversed
the lower-court judge on that
issue, holding that the school districts,
at least, had standing to sue
the secretary of education under
NCLB because, the court said, the
law requires them to “pay for more
tests than they would administer
if left to their own devices.”

That part of the ruling may be
significant for other districts that
seek to challenge the No Child Left
Behind law. The appellate court
took note of the Jan. 7 ruling by its
neighboring court, the U.S. Court of
Appeals for the 6th Circuit, in
Cincinnati, that revived a major
lawsuit challenging the NCLB law
as an unfunded mandate. ("Court Ruling in NCLB Suit Fuels Fight Over Costs", Jan. 16, 2008.)

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But the 7th Circuit panel quickly
moved on to conclude that, on the
merits, the Illinois suit “is too weak
to justify continued litigation.”

The court said that even if the
No Child Left Behind law, passed
by Congress in 2001 and signed by
President Bush in 2002, had provisions
that conflicted with the IDEA,
the descendant of federal legislation
enacted in the 1970s, the
newer law must take precedence.

“Plaintiffs’ view that an earlier
law can repeal a later one by implication
has time traveling in the
wrong direction,” the 7th Circuit
court said. It added that nothing in
the 2004 reauthorization of the
IDEA superseded the testing requirements
of the NCLB, which itself
is the latest reauthorization of
the Elementary and Secondary Education
Act of 1965.

“The 2004 amendments were designed
in part to conform the [IDEA]
to the [NCLB law], not to displace
it,” the court said. “Thus the asserted
conflict is between legislation
enacted in 2001 and a structure
that was adopted in stages
between 1970 and 1990, and the
2001 statute must prevail to the
extent of any conflict.”

The 7th Circuit covers Illinois,
Indiana, and Wisconsin.

John M. Izzo, a Flossmoor, Ill.,
lawyer for the plaintiffs, said
many schools are running into conflicts
between requirements of the
NCLB law and the IDEA.

“If Congress was trying to reconcile
the two, I don’t think they
did so successfully,” said Mr. Izzo,
who added that an appeal is
under consideration.

Samara Yudof, a spokeswoman
for the U.S. Department of Education,
said department officials
were pleased by the “favorable
decision.”

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